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Home My WebLink About20020089 Ver 1_Court Case Settlement_20100525e'`SG57E4 ?4 ids Oww State of North Carolina Reply to: Department of Justice Beverly Coats Environmental Division ROY COOPER PO Box 629 Tel: (919) 716-6600 Fax: (919) 716-6766 Attorney General Raleigh, North Carolina 27602 May 21, 2010 D u?LSa 1J l5 ^ John Domey U DWQ/Archdale MAY 2 5 2010 DENR - WATER QUNM Interoffice WERAMD8ANDST 11MAMARM ICH Re: ARH Development, LLC, Al Hashemi, v. NC DENR, Division Water Quality 09 EHR 3250 Dear John: Enclosed please find two original copies of the Settlement Agreement in the above- referenced case. Please sign both copies & return them in the interoffice envelope provided. Thank you for your assistance in this matter. Sincerely, &tA4CZI? Beverly Coats Legal Assistant bnc Enclosure STATE OF NORTH CAROLINA IN THE OFFICE OF AOMINISTR T MAR- NGS COUNTY OF WAKE i 09 EHR 3250 ARH Development, LLC, Al Hashemi, ) Petitioners, SETTLEMENT AGREEMENT V. ) North Carolina Department of ) Environment. and Natural Resources,_ Division of ater Quality, ) Respondent, ARH Development, LLC, and Al Hashemi, Petitioners, and the North Carolina Department of Environment and Natural Resources, Division of Water Quality ("DWQ'), Respondent, hereby enter into this Settlement Agreement ("Agreement") in order to resolve a matter in controversy between them pursuant to N.C. Gen. Stat. § 150B-31(b). This matter arose out of the approval of Petitioner ARH Development, LLC's stonmwater management plan ("SMP approval") by DWQ on March 17, 2009. Petitioners appealed the conditions of the SMP approval. Without any hearing of fact or law in the above-styled matter, IT IS THEREFORE AGREED BY THE PARTIES THAT: 1. In order to avoid the cost and delay of further litigation, the parties have entered into this Agreement and have agreed that all parties have been correctly designated and that there is no question as to misjoinder or nonjoinder. 2. Within one year of the execution of this Agreement, Petitioner ARH Development, LLC will submit to Respondent a complete application for modification of the SMP approval 262922-vl W for Metropolitan I (formerly "Northwood Center I"). No fee shall be required for review under the traditional stormwater management review program. Respondent will review the application in the normal course pursuant to DWQ policy. Such applications are reviewed on a fast-come, first-served basis. Respondent will consider the modification application documents in determining whether to modify the SMP approval for Metropolitan 1. Approval of the application will not be unreasonably withheld. Reasonableness in this context will be evaluated in light of the requirements of the Minor Variance obtained in 2002, and North Carolina's water quality statutes and regulations. 3. Petitioner ARH Development, LLC will submit the application described in Paragraph 2 before beginning any phase of construction at the Metropolitan I project referenced in the SW approval. 4. The parties agree that the application for modification of the SUP approval described in Paragraph 2 must, at a minimum, include the following: a. A cover sheet including the following information: i. A statement that modification of the Metropolitan I SW approval is the reason for the application. ii. A reference to DWQ Project No. 02-0089. iii. All necessary attachments, including buffer impact plan sheets. b. An enumeration of all proposed actual buffer impacts including the proposed actual impervious surface buffer impacts for all three phases of the project, with the total proposed actual impervious surface buffer impacts amounting to equal to W 262922-v1 2 or less than 26,660 square feet for all three phases, pursuant to the Minor Variance obtained in 2002.] i. Any greenway paths that cross the buffer will be included as impervious surface impacts. ii. Any stormwater basins/ponds will be considered pervious, and are therefore not to be counted in the impervious surface calculation, but should still be counted in the total proposed actual buffer impact calculation. C. One drawing that shows all the proposed actual impacts to the buffer and the calculations of those impacts for all three phases. Full size plan sheets (1":30' scale) are required showing all impacts, topographic contour lines, fill slopes, streams, and Zones 1 & 2 of the riparian buffer (measured from the top of the stream bank, not the center line of the stream). d. Mitigation to be provided for all proposed actual impervious surface impacts to the buffer zone for phase I (Metropolitan I). 5. Respondent and Petitioners agree that the mitigation required pursuant to the 2002 Minor Variance for Metropolitan I, U, and III is only required for the proposed actual impervious surface impacts to Zone 2 of the buffer zone. The total proposed actual impervious surface buffer impacts to Zone 2 of the buffer zone for all three phases (Metropolitan I, H, and III) shall not exceed the amount allowed in the 2002 variance (26,600 sq. feet). U 262922-A 3 6. The original Minor Variance approved by DWQ letter of May 2, 2002 (DWQ Project No. 02-0089) remains fully effective. Ae intent of this Agreement is not to change the original Minor Variance granted in 2002. 7. There may be future changes in the project plans, and nothing about this Agreement prohibits such changes or changes the ability of an applicant to get such changes approved, provided that those changes are in compliance with the Minor Variance approved May 2, 2002 and any DWQ approvals obtained thereafter. 8. Petitioner ARH Development, LLC shall mail the documents described in Paragraphs 2 and 3 to following address: Cyndi Karoly 401 Oversight/Express Permitting Unit 1656 Man Sere Genie Raleigh, North Carolina 27699-1650 9. The parties agree that any application for approval of stormwater management plan(s) for phases II and III (Metropolitan II and III) will be separate from the application to modify the phase I SW approval described above. Mitigation for the proposed actual impervious surface impacts to the buffer zone in phases II and III will be provided upon approval of stormwater management plan(s) for those phases. Mitigation for those phases will be required only for all proposed actual impervious surface impacts to Zone 2 of the buffer zone. 10. The parties agree that the consideration for this settlement is the promises contained herein and that this Agreement contains the whole agreement between them. 262922-v1 4 11. This Agreement shall be binding upon the parties, their successors and assigns, upon execution by the undersigned, who represent and warrant that they are authorized to enter into this agreement on behalf of the parties hereto. 12. This Agreement shall be binding upon the parties and is entered into knowingly, 4A intelligently, and voluntarily. I [SIGNATURES ON FOLLOWING PAGE] 262922-A 5 ARH DEVELOPMENT, LLC By: , By: Al Hashemi Member/Manager ARH Development, LLC 9519 Bartons Creek Road Raleigh, North Carolina 27615 Date: 0 ?, 04 ?a F NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, DIVISION OF WATER QUALITY and Policy Development Unit & Stormwater Branch Division of Water Quality Date: cJ ?7 0 HA MI By: Al Hashemi PO Box 97772 Raleigh, NC 27624-7772 ROY COOPER ATTORNEY GENERAL BY' By: a o ?. 0 .James L. Conner Brenda E. Menard - - Attorney at L w Assistant Attorney General Representing Petitioners Representing Respondent P.O. Box 31507 N.C. State Bar No. 35445 Raleigh, NC 27622-1507 North Carolina Department of Justice (919) 881-2218 Environmental Division 9001 Mail Service Center Raleigh, NC 27699-9001 (919) 716-6600 (919) 716-676.6/fax Date: Date: [it) -5 /-A I I 26292.2-vl 6